9911796707
TMI Blog2002 (4) TMI 402X X X X Extracts X X X X X X X X Extracts X X X X ..... e, is required to be stored in underground tanks with connected pipe lines, motors etc.; that for underground storage, RCC base with steel plates of 10 mm thickness is required which have been welded and placed by nuts on the RCC base and thereafter tank has been fabricated piece by piece assembled to iron/steel sheet; that water storage system is created by motors, pipe lines etc.; that crude oil tanks has been constructed on RCC base; that steel sheets have been welded and grouted to the base by nuts and bolts; that all the three systems are not having their own separate identity but a part of the whole system of the solvent extraction and refining plant; that therefore, these tanks cannot be treated as storage tanks as classifiable under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at any stage as held by the Appellate Tribunal in the case of Gujarat State Fertilizers Company Ltd. v. Collector of Central Excise, Vadodara - 1996 (83) E.L.T. 159. Finally, he submitted that the demand of Excise duty is time barred since the Appellants had sufficient reasons to assume at the material time that the tanks were not excisable commodity; that it was clarified by the Indore Collectorate under Trade Notice No. 51/89-C.E., dated 5-5-89; that if the piece by piece erection or installation results into a immovable property, no duty would be required to be levied on such property. Reliance was also placed on the decision in the case of Padmini Products v. CCE - 1989 (43) E.L.T. 195 (S.C.) and Agarwal Pesticides and Chemical Industr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the tanks; that in respect of crude oil storage tanks also the holes were made in extra base plate for placing nuts and bolts. He further mentioned that the extended period of time limit is invocable in the present matter as the Appellants had not disclosed the activity of fabricating the tanks to the Department and they have not maintained statutory records and utilized them without payment of duty. Learned DR also stated that the tanks by themselves cannot be treated as plants so as to be classifiable under Heading 84.19; that the tanks are rightly classifiable under Heading 73.09; that as they had not claimed the SSI Exemption before the Adjudicating Authority, the same has not been examined. 4. We have considered the submissions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf be called plant. Tanks are specifically covered under Heading 73.09 of the Tariff and as such will be classifiable therein only. As far as penalty under Section 11AC of the Central Excise Act is concerned, we hold that it cannot be imposed as the period involved is prior to the Section coming into force. We therefore, set aside the penalty as well as interest imposed under Sections 11AC and 11AB of the Act. The Adjudicating Authority will also examine on the basis of the evidence which may be submitted by the Appellants whether benefit of small scale exemption under Notification No. 1/93 is available to them. The Adjudicating Authority will be at liberty to impose penalty under Rule 173Q of the Central Excise Rules if deemed fit. The mat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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